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A Brief History of Indians, Torts and English Common Law

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American Indians understand living in a web of relationships that carry privileges and impose duties. Therefore, I wonder, why is tort law virtually absent in the routine of tribal governance?

Tort law in the dominant culture normally does not come from statutes but from the English Common Law as it has branched off from England to 49 states, all but Louisiana.

In most states, we carry around a free-floating duty not to be "negligent." This is nothing complicated. It means that we should act as a reasonable person would act in the same or similar circumstances. If we fail this duty, we owe anybody we harm.

What we owe could be complicated. Most people agree on medical bills and lost wages, called "special damages."

We begin to disagree on "general damages," packed into phrases like pain and suffering and mental anguish. It's easy to pooh-pooh the idea of general damages if you don't think about some obvious questions.

What is a tiny child's life worth?

What sum of money would you take to suffer what you have suffered since your injury?

After the medical bills are paid, what is it worth to you to lose an eye or an ear or a testicle? What are you whining about? You have two of them, right?

General damages account for not having the money needed to hire a lawyer to make your claim. We solve this with "contingent fees," meaning that the lawyer does not get paid unless she wins; what she gets paid is a percentage of the damages. Therefore, if the damages are limited to medical bills and lost wages, the injured person could never break even.

Complications in the Common Law grow for honest reasons. At first, the rule is that if the injured party is also negligent, he recovers nothing. There was a famous case involving the duty of an employer to provide a safe working environment. The employee was negligent because he had been drinking. He was injured because the roof fell on him, but he recovered nothing because he had been drinking.

Why, you may well ask, don't we just ask a court to apply common sense to each case? Because judges are easily captured by repeat players in the system.

Why not leave the hard questions to juries? We do that. Sometimes it works. Sometimes we get results like an individual in Texas who was severely injured in an accident she did not cause, but the insurance company's lawyer managed to get in front of the jury that she had been a political candidate of the Socialist Workers Party. For that reason, she got nothing.

English common law is nothing but a set of tribal customs that started getting written down by an especially powerful tribe in the year 1066, as white people reckon time. There is no reason why those tribal customs are inherently superior to any other tribe's customs, but they may be superior in particular ways. This is because the situations to which the customs respond are universal. People interact and people get hurt, always, and most people agree that it's not fair to make innocent people bear the burden of their injuries alone.

Social duty is on the clearest level in homicide, the taking of a human life. The English looked down on some Indian justice systems, my own included, because to us all such losses were the same and a life demanded a life in return unless the relatives agreed to settle for something less.

To the English, and to most justice systems today, a homicide had different ramifications depending on whether the death was intentional, reckless, or merely the result of negligence—in other words, an accident.

Even when homicide is a crime, it is still a tort, as are robbery, rape, assault—most intentional crimes contain a tort. Criminals usually don’t get sued because they have no money. In some states, crime victims get compensated by the government, on the theory that the government has failed to protect them.

It comes to my mind that when the Supreme Court took away the jurisdiction of tribal courts to punish non-Indians for crimes on Indian land, it said nothing about torts. Even when a tort judgment cannot be collected in full, there are ways to make the life of a judgment debtor miserable.

Handled smartly, a tribal tort system could encourage non-Indians who harm Indians on Indian land to, in the immortal term coined by Mitt Romney, “self-deportation.”

This is the challenge of Indian tribal governments: to govern, and to resolve these universal problems in ways both objectively fair and predictable. When tribal law conquers that challenge, the opinions of dead Englishmen do not matter. When tribal law fails, the opinions of live Indians do.

Sometimes, a failure to act is negligence.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.

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Contrary to what the author implies, tort law did not begin with English common law. Nor was English common law the result of a set of customs written down by a particularly powerful tribe in England. Tort law was a part of the Roman law system, and Roman law was the basis for all of the more "modern" legal systems that developed later in those parts of Europe (including England) that had been conquered by the Romans. In addition, until the time of Justinian the Roman law system was a "common law" system. Thus, assuming it did not have earlier roots in Greek or other legal systems, it would be more accurate to say that tort law is the result of a set of customs written down by a particularly powerful tribe in the middle of what is now known as Italy. That tort law has endured for such a long time is an indication that it plays a significant role in society.

This is farther off in the weeds than I intended to get, but I'm happy to travel.
This is as if I told you electricity comes out of the plug on the wall and you say "No, it comes from the power plant" and somebody else says "No, it comes from a national grid."
In fact, the Civil Law system of Europe is the direct descendent of Roman Law, and that is the heritage of the one state I did not address, Louisiana. The English brought their Common Law here but, yes, when I chose 1066 I was choosing the Norman Invasion as an arbitrary starting point and that is a direct infusion of continental/Roman tradition.
I'm sure the readers really were panting to hear that.
If I had more room, I would not have used it on more precise history but rather I would have begun to describe the things a judgment creditor can do to a judgment debtor to make his life miserable.
I would have pointed out that tribal governments can be very creative about post-judgment remedies, the most obvious innovations being to not recognize any exempt property and to make the execution process accessible without lawyers.
The result I am looking for, and I think is reachable, is that any non-Indian who comes on Indian land and harms an Indian forfeits all property within the reach of tribal court jurisdiction.
This can be done without offending the Indian Civil Rights Act or, as important, being unfair in any objective sense.
That's my point. Not legal history but an end tun around the Oliphant case.
The title is kind of misleading but I did not write it. My title was "A Tort is Not an English Muffin," which my editors apparently considered too cute.

Ha ha ha...a tort isn't an English muffin! They should have kept it! You're right, finding and using the hidden possibilities in tribal sovereignty is key to being successful in the future and you're right, it will be a challenge. What further solutions do you see to rise and solve it? I for one think we need to educate ourselves, old and young, about tribal law then we can actively discuss it the way calben has. Keep up the good work both of you.